No one could have imagined that when a hunter stumbled
upon the partly decomposed body of a young woman on a steep hillside
overlooking the Molalla River in August 1987, his discovery would
lead to the most dramatic serial murder case in Oregon's history.
Within five days of the discovery another six female bodies were
found, all within 100 yards of the first body. As the gruesome details
about the manner of the victims' death gradually became evident,
shock turned to horror. One body was too skeletalized to discern
the precise nature of her death, but at least four of the others
had had their feet sawn off and one of the victims was disemboweled.
The sense of horror was prolonged and intensified as fresh details
of the tortures, the victims' identities, or the signature manner
of the killer were reported in the press in the following months.
Oregon seemed to have its own 'Green River killer,' dubbed
by the press the 'Molalla Forest killer,' in its midst.

By Sept. 17, 1987, a suspect was identified: Dayton
Leroy Rogers, a 33-year-old male with a lengthy criminal record
who lived in Canby and operated a small engine repair shop in Woodburn.
A Clackamas County jury, ironically consisting of 12 women, found
Rogers guilty of 13 counts of aggravated murder in the deaths of
the six women, and the judge sentenced him to death on June 9, 1989.

According to the Death Penalty Information Center,
when a person is sentenced to death in America, that person is normally
executed within 12 or 13 years of sentencing if there are no complications
with subsequent appeals. In Oregon, inmates condemned to death may
pursue 10 legal proceedings after sentencing, the first of which
is a mandatory appeal before the Oregon Supreme Court, before the
state can legally put that person to death.

If Oregon were in line with national trends, therefore,
Dayton Leroy Rogers would probably be scheduled for execution sometime
in 2001 or 2002. It may come as a surprise to learn that as of April
2002, Dayton Leroy Rogers still has all 10 of his legal proceedings
remaining and, in fact, is legally further from execution than he
was when the Clackamas County jury voted to give him the death penalty
in 1989. Because of this, the earliest conceivable day that we might
be able to execute Rogers is around 2020, if he has not died of
old age (he was born in 1953) or illness before that time and if
no more delays in his appeals result. The story of why this is the
case cannot be understood without an awareness of Oregon's flawed
death penalty statute, a whimsical judiciary, an electorate that
thought it was getting tough on crime but ended up delaying the
process of putting people to death and, ultimately, a legal system
that is highly ambivalent about putting people to death in Oregon.

OREGON'S MODERN DEATH PENALTY LAW
Though Oregon abolished the death penalty by initiative petition
in 1964, by the mid-1970s a move to restore the death penalty was
afoot. Fueled by the ever-growing realization that dangerous people
were released into the community far earlier than was wise, the
movement achieved the restoration of the death penalty through initiative
petition in 1978. However, the petition was poorly worded, and the
Oregon Supreme Court struck it down in January 1981. Proponents
vowed to bring a better initiative to the voters. After the birth
of the victims' rights movement in 1982, additional legislative
temporizing in 1983 and a few more grisly deaths in Oregon, an initiative
petition to restore the death penalty passed by the astonishing
margin of 75.1 percent to 24.9 percent in November 1984.

Two features of the modern Oregon death penalty law
should be emphasized. First, it is a Texas-style statute. Death
penalty experts speak of two versions of capital statutes: a Model
Penal Code version and a Texas version. The former emphasizes the
weighing of mitigating and aggravating factors by a jury, while
the latter requires a 'future dangerousness' finding by
the jury. Oregon was the only state other than Texas to adopt a
Texas-style statute in the 1980s.
Second, proponents of the restoration of the death penalty stressed
how much cheaper it would be for the state to execute people rather
than to keep them in prison for life. This claim assumed that executions
would be carried out fairly quickly after the time of the death
sentence. Indeed, the 1978 version of the law approved by Oregonians
provided that death penalty cases 'shall have priority over
all other cases' and were to be 'subject to review'
within 60 days of the certification of the lower court transcript.
Efficiency and cost control were the order of the day.

THE DEATH PENALTY IN PRACTICE
Yet, things have not worked out that way. The new death penalty
law went into effect Dec. 6, 1984. It was not until 1986 that the
first Oregon jury sentenced two men to death under the 1984 statute.
In 1987 three men were sentenced to death. Then in 1988 and 1989
the floodgates opened: Oregon juries sentenced 18 men to death between
January 1988 and June 1989.

But then, on June 26, 1989, everything changed for
Oregon. The U.S. Supreme Court handed down a decision in the Texas
case of Penry v. Lynaugh, which held that a jury must be able to
take into consideration and give a 'reasoned moral response'
to all evidence that the defendant might bring in mitigation of
a sentence of death. The Court held that the Texas statute did not
provide that opportunity and so the case was remanded to the Texas
Supreme Court.

The case sent shock waves back to Oregon. The Oregon
Supreme Court had to do something with the 23 men who had been sentenced
to death under a statute that the U.S. Supreme Court had said was
inadequate. Its options were three. It could vacate the sentence
of death and remand each of the 23 cases to the circuit courts for
new sentencing hearings to see if they would be resentenced to death.
Or it could vacate the sentence of death and order a new trial for
all 23 defendants. Or the court could recognize that Oregon's law
was inadequate and sentence the 23 men to life imprisonment. The
court chose the first alternative.
From 1990 to 1992, the Oregon Supreme Court vacated the death sentences
of each of the 23 men, one by one, so that the circuit courts could
decide again on the death sentence. A few of the 23 also faced new
trials. Most of these remanded cases settled for something less
than a sentence of death. Dayton Leroy Rogers' case did not.

Because the sentence of death was originally handed
down to Rogers a mere two weeks before the Penry decision, Rogers'
transcript and briefs were not all submitted to the Oregon Supreme
Court until 1991 and the court did not get around to remanding his
case to Clackamas County until 1992. A new sentencing jury was empaneled,
a sentencing trial was held, testimony was presented and the sentence
of death was reimposed May 17, 1994.

The case then returned to the supreme court on automatic
appeal. Under normal circumstances it would take about three years
for the transcript of the penalty phase trial to be settled, briefs
of both sides to be filed, oral arguments to be scheduled and heard,
and a decision to be rendered. Even though the 60-day period envisioned
in the 1978 law was a chimera from the beginning, one could still
expect a decision within a few years from the time that the circuit
court sentenced a defendant to death. Thus one should have expected
that his death sentence would be affirmed by the Oregon Supreme
Court sometime in 1996. But the Rogers case then hit another snafu
that affected all the death penalty cases in this period. The snafu
was created by the poor wording of a victims' rights initiative,
Ballot Measure 40, that went to the voters in November 1996.

Measure 40 created a series of lengthened sentences
for many serious crimes. But the measure was silent on whether and
how the victims' rights initiative would apply to pending cases.
So, in December 1996, the supreme court decided to put all death
penalty cases 'in abeyance' until it could hear arguments
and decide how the initiative affected pending cases. As their schedule
would have it, the court did not reach a decision on the issue until
June 1998. The case in which the court reached its decision, Armatta
v. Kitzhaber, is now at the center of a raging debate over how to
amend the Oregon Constitution in order not to violate the single-subject
and separate-vote requirements of the constitution.

All this had an effect on Rogers' case. His case was
not resubmitted by the court until June 1998. Oral arguments were
not held until early in 1999. It was not until May 4, 2000 that
the Oregon Supreme Court handed down its second decision in the
Rogers case. The result? Another remand for a third penalty or sentencing
phase trial.

Although the first remand was driven by the finding
of the U.S. Supreme Court that the Oregon statute was inadequate,
and the delay from 1996-1998 was occasioned by sloppy wording of
the victims' rights advocates, the reason for the 2000 remand must
be placed squarely at the door of the supreme court. Simply put,
it changed the rules on how many sentencing options a jury had to
consider in a remand situation for a pre-Penry defendant on Oregon's
Death Row.

TWO OR THREE SENTENCING OPTIONS ON REMAND?
That last statement requires some explanation. If a person was convicted
of aggravated murder in Oregon from December 1984 until July 1989,
the sentencing jury had two possible penalties it could impose:
death or life imprisonment with a possibility of parole in 30 years.
In July 1989 the legislature passed the 'true life,' or
life without the possibility of parole option, for capital cases,
the implication of which was that the sentencing jury could now
choose one of three punishments for a person found guilty of aggravated
murder: death, life without the possibility of parole, or a life
sentence with a possibility of parole in 30 years.

The passage of the 1989 true life law created a dilemma
for the courts in the early 1990s. If the aggravated murder was
committed after July 1989, it was clear that the jury would be instructed
in the three options. But what would be the result in a remand situation
for a jury after 1989 when the original crime was committed before
the effective date of the true life option? Would the jury be instructed
to consider only the two options in effect at the time of his crime,
or would the jury be instructed on all three options because the
remand hearing was taking place after the effective date of the
true life option?

The question is easy to pose but difficult to answer.
The legislature spoke to the issue both in 1989 and 1991, and appeared
to say that in a death-penalty remand situation, the jury would
be instructed in all three options. But from 1991-94, the supreme
court ignored these statutes and required the instruction in the
two 1984 options.1 Rogers' remand jury was instructed in two options
in May 1994. Then, when his case returned to the Oregon Supreme
Court in 1999, the court changed its mind. It said now that three
options must be presented to the remand jury. Because Rogers' jury
only had the two options, his case must be remanded once again.
This second remand penalty phase trial is scheduled for June 2002.

If he is resentenced to death this summer by his third
penalty-phase jury, Rogers' case will then return to the Oregon
Supreme Court to be affirmed around 2007. It will take so long to
return this time because, while the court was deciding whether two
or three options should be given to remand juries, another dozen
or so men have been sentenced to death. Rogers must 'get in
line' behind them before his case can be heard again by the
Oregon Supreme Court. Thus, it will conceivably be 20 years from
the date of commission of his crime until his sentence of death
is affirmed by the Oregon Supreme Court. And, as we now shall see,
affirmation of one's conviction by the Oregon Supreme Court is only
the first of ten steps open to a condemned inmate in Oregon.

OTHER STEPS
Rogers' first step, direct appeal to the Oregon Supreme Court, will
take probably 20 years from the time of Rogers' crime. The nine
remaining steps will probably take about 12-15 years. The following
nine steps open to Rogers after his conviction is affirmed by the
Oregon Supreme Court, and the probable length of these steps, are
as follows:

1. Direct appeal to the United States Supreme Court.
A defendant has 90 days from the entry of the appellate judgment
by the Oregon Supreme Court to file a petition for certiorari with
the U.S. Supreme Court. This appeal is almost always swiftly rejected,
but it may take the Court six months to get to his petition. Therefore,
this step may take between six and nine months.

2. Filing of a petition for post-conviction relief
in Marion County Circuit Court. This phase of the appeals, called
state post-conviction relief, is also referred to as a 'collateral'
relief because it principally relates to whether the defendant's
trial and appellate counsel were constitutionally ineffective in
representing the defendant. It is filed in Marion County because
that is where the defendants live - at the Oregon State Penitentiary.
When the 'Post-Conviction Relief Act' was first applied
in a death penalty case in 1963, the petition was dismissed in two
months. Now, it takes between 2.5 and 6.5 years to deal with the
petition. The reason for the increasing length of time is that post-conviction
relief has become the arena through which the trial and appeal are
almost re-enacted.

3. Appeal of the dismissal of the post-conviction
petition to the Oregon Court of Appeals. This is provided by statute
and, in the four cases that have come this far in the history of
the statute, none has yet been decided. It looks like it will take
an average of 2 to 3 years.

4. Appeal of the affirmation of the dismissal by the
Court of Appeals to the Oregon Supreme Court. Review of these cases
by the Oregon Supreme Court is discretionary. Because no cases have
yet reached this stage, it is uncertain whether the court will accept
review of death penalty cases on collateral appeal or not.

5. Appeal of the Oregon Supreme Court's action to
the United States Supreme Court. This also will probably be dismissed
routinely, but it may buy the defendant another nine months.

6. Filing of petition for federal habeas corpus relief
in the U. S.District Court of Oregon. Although a new federal law
designed to hasten the pace of a defendant's federal death penalty
trial was put in place in 1996, Oregon will probably not try to
'opt in' to the 'benefits' of the act and so
will not force defendants to pursue expedited procedures for their
federal appeals. One can assume that a minimum period of 2-3 years
for the filing of the petition, a hearing and a decision will be
required.

7. Appeal of the decision of the federal district
court to the Ninth Circuit Court of Appeals. The Ninth Circuit does
not deal with its criminal docket very expeditiously; one can anticipate
another two to three years before a decision is reached.8. Appeal
of the decision of the Ninth Circuit to the U.S. Supreme Court.
This is usually the step where the Supreme Court handles its death
penalty cases. The Supreme Court hears about two to four death penalty
cases per year.

9. Appeal for clemency to the governor of Oregon.
This procedure is statutorily laid out and may take anywhere from
four to eight months (or more) to complete.

CONCLUDING REFLECTIONS
In calculating when Oregon might plausibly be able to put Rogers
to death, it would be unwise to simply 'add up' the minimum
projected dates for each of the 10 steps. Just as no one could have
imagined in 1984 that it would take nearly 20 years for any particular
defendant to successfully complete 'step 1' of his appeals,
no one today can accurately predict how long the other stages will
take or, in fact, whether some other unforeseen delay will enter
the system.

Nevertheless, if we were to try to 'add up'
the years for Rogers, we would get something like this. Crimes were
committed in 1987. The Clackamas County jury sentenced him to death
in 1989. The Oregon Supreme Court remanded the case for a new sentencing
hearing in 1992. A second Clackamas County jury again sentenced
him to death in 1994. Measure 40 hit. The Oregon Supreme Court finally
in 2000 remanded the case once again for a new sentencing hearing.
That new hearing will take place in 2002. If he is sentenced to
death again, it will return to the Oregon Supreme Court for affirmation
probably in 2006 or 2007. The U.S. Supreme Court will deny certiorari
in 2007. His petition in Marion County Circuit Court will probably
be dismissed around 2011. The Oregon Court of Appeals might affirm
that dismissal by 2013. The remaining years are anybody's guess,
but the remaining five steps should probably take another seven
years.

Though the process has worked slowly for Rogers, it
has been quicker for many post-Penry defendants. At least half a
dozen of men who were sentenced to death after 1990 have already
had their convictions affirmed by the Oregon Supreme Court. Four
men have already had their post-conviction petitions dismissed.
Though one of the four has run into some procedural hitches at the
state Court of Appeals, two of the four may have finished their
post-conviction appeals by 2003. Thus, the final irony in Oregon's
delay, or inability, in putting Dayton Leroy Rogers to death, is
that a number of 'lesser' aggravated murderers might die
first. One would think that the value of the death penalty statute
would be related to its ability to be effective against the most
heinous aggravated murderer. If Oregon cannot execute its worst
serial killer, what justification does it have to execute the others?
In the final analysis, when Oregon executes Clinton Cunningham or
Jesse Pratt or Jeffrey Williams or Mark Pinnell, the four men who
now have cases before the Oregon Court of Appeals, not only should
they, but also the entire state of Oregon ought to ask, 'And
where is Dayton Leroy Rogers?'

ABOUT THE AUTHOR William R. Long, is an attorney in the trial practice
group at Stoel Rives LLP in Portland. He is the author of the recently
published book, A Tortured History: The Story of Capital Punishment
in Oregon (Oregon Criminal Defense Lawyers Association, 2001). He
may be contacted at wrlong@stoel.com.

ENDNOTE
1. A more detailed consideration of this point and the development
of the issue appears in the author's paper, 'How Langley Bested
Carson and Got Ten More Years of Life for Himself and Three of His
Death-Row Colleagues' and is available on request from him.